Presidential Reference, SCBA petition: SC asks counsel whether act of disloyalty is not dishonesty

ISLAMABAD: The Supreme Court questioned whether disloyalty is not dishonesty and would it not fall under Article 62(1)(f) of the Constitution, - disqualification for life.

Justice Muneeb Akhtar observed when a member in his nomination paper on oath declares he belongs to a party then it is not dishonesty that a statement given on oath is violated through defection. He said the member through statement on oath, which is a public document, tells the voters he belongs to a party, adding the voters give him vote as they like a certain party whether it is the PPP, the PTI or the PML-N. He said defection is like a cancer, adding the cells affected by cancer start destroying the body. He said the members are also like cells, which through defection destroy the political party.

A five-member bench, headed by Chief Justice Umar Ata Bandial on Tuesday heard the Presidential Reference, filed under Article 186 of the Constitution and the petition of President Supreme Court Bar Association (SCBA) Ahsan Bhoon, filed under Article 184(3).

Justice Ijazul Ahsan inquired from Farooq H Naek, representing Pakistan Peoples’ Party (PPP), whether an act of disloyalty is not dishonesty? Justice Muneeb questioned when the loyalty to a party is declared on oath then would it not fall under Article 62(1)(f).

Naek replied disloyalty was a strong word, adding that it was not mentioned in Article 63A. He said loyalty is in a kingdom, where the masses are subjects and not the citizens. In a democracy there is no loyalty to a person.

Justice Bandial said if they render an opinion on the Presidential Reference then what will be left for the Supreme Court to decide in appeal under Article 63A of the Constitution.

Justice Bandial said the law (Article 63A) was passed in 1998 and noted there is power available with the party head to condone the defection, if he wants. He said in the past the party heads have ignored defection. Naek said if there will be rigidity in politics then there will be anarchy in the country. He argued that it is not enough that a member who does not follow party discipline is de-seated.

Naek argued that the Presidential Reference is not against Article 63A of the Constitution, but clause 4 of the article. He said the attorney general (Khalid Jawed) based his arguments on morality and political grounds. He said morality is different from society to society and region to region. He contended that in Article 63A no time limit is given for the disqualification on defection.

Upon that Justice Ijazul Ahsan said the time limit was not mentioned in Article 62(1)(f), but the Supreme Court interpreted it. He said defection is treated as a constitutional offence. The judge questioned is defection not breach of trust and does a member remain sagacious, righteous, and honest after defection.

Naek replied that defection is a political act and does not fall in the domain of morality. Justice Bandial said when the case started the attorney general talked about morality. He also talked about trust or “amanat”, adding four situations were given in Article 63A. He also said betrayal is opposite to loyalty and loyalty is one of the fundamental principles of the Constitution, which is described in Article 5. He questioned loyalty to the party is not the duty of every member of the Parliament? He remarked de-seating a member on defection is a minor punishment.

The chief justice said they have to read Article 63A not in isolation, but the Constitution has to be read as a whole. Naek argued that in the nomination paper a member declares on oath that “I belong to a certain party”. Justice Ijaz said belonging to a political party means agreeing to all the terms and conditions of the party. The member commits that he would follow the party terms.

Naek asked the bench whether they wanted that the members become “a slave of the party”. He argued the members get votes not only due to the party, but because of their own character and manner. Justice Ijaz said if a member wants to maintain his character then he should resign from his seat and come back again by contesting the election, this is an honourable way.

Advocate General Sindh Salman Talibud Din said if the apex court connects defection with disloyalty or dishonesty and say that instead of selling vote, a lawmaker should resign from his seat and people will admire this act of the member. He said this way the Court will open another door, then some members taking money will resign from the party in order to reduce the party’s majority in the Parliament. He said the PTI government had sent political questions to the Supreme Court, and the timing of the Reference was suspicious.

It will tantamount to that punishing the members under 62(1)(f) for defection will make Article 63A redundant. He said if a member gives his vote against the party direction then it will make Article 63A ineffective. He said the trust is of the voters of the constituency, who have elected the member.

He further said that in a mature democracy floor crossing is meaningless, adding Article 63A is the way towards becoming a mature democracy and when someone defects, he should go back to the people. He said it depends upon people whether they want to re-elect that member again or not. It should be left to the voters. He pleaded that the reference should be returned unanswered. The case was adjourned until Thursday (Apr 21).

Copyright Business Recorder, 2022